In a recent case, the Western District of Virginia found that emails between defendants were not entitled to the work product privilege and were instead discoverable. The court held that for the work product privilege to apply, the subject materials “must be part of the process of seeking, developing, or conveying legal advice or strategy” and since the emails at issue in this case were simply communications to coordinate responses to the plaintiff’s EEOC complaint, the privilege did not apply. This case offers guidance to employers on the importance of maintaining confidentiality during workplace investigations.

Coffey v. Tyler Staffing Services, Inc.

Deanna Coffey worked for Tyler Staffing Services, Inc. (“Chase Professionals” or “Chase”). Chase is a temporary staffing agency for ServiceMaster of Shenandoah Valley, Inc., and contracted for Coffey to work for ServiceMaster. Coffey claimed her supervisor at ServiceMaster sexually harassed her and that Chase and ServiceMaster retaliated by firing her when she complained to ServiceMaster about the sexual harassment by. Coffey brought an action against Chase and ServiceMaster for sexual harassment and retaliation.

The court granted Coffey’s Motion to Compel Discovery and required ServiceMaster to produce documents and emails between Chase and ServiceMaster. The documents, which Chase claimed to be privileged, consisted of: emails between Chase and ServiceMaster employees relating to the response prepared to Coffey’s EEOC complaint; emails between Chase and ServiceMaster requesting copies of emails relating to Coffey’s termination; and emails between Chase and ServiceMaster which transmit ServiceMaster’s Employment Practices Liability Insurance. Chase filed a Motion claiming that the emails were protected work product created during its workplace investigation and seeking to have them clawed back from Coffey.

Under the Federal Rules of Civil Procedure, typically a work product privilege applies to documents “that are prepared in anticipation of litigation or for trial by or for another party or its representative.” To shield documents from discovery under the work product privilege, three threshold requirements must be met: (1) the information sought must be otherwise discoverable; (2) it must have been prepared in anticipation of litigation; and (3) the material must have been prepared by or for a party to the lawsuit or by or for that party’s representative. Generally, if materials are shared between parties, the work product privilege is waived. However, the “common interest doctrine” allows parties whose legal interests coincide to share privileged materials with one another to more effectively prosecute or defend their claims and still allow the privilege to apply. 

Here, Chase argued that the work product privilege applied because the emails were obtained or prepared in response to Coffey’s EEOC charge and that Chase and ServiceMaster had a common interest in defending against the EEOC charge. Coffey argued that the emails were not privileged since they were routine emails regarding a harassment complaint not prepared by an attorney.

The court concluded that work product privilege did not apply to the emails. The court found that the emails were discoverable, as they shed light on the employment relationship between defendants, and the documents were prepared in anticipation of litigation, as they related to efforts to respond to Coffey’s discrimination and retaliation claims. Additionally, while the materials were not prepared by an attorney, since the Fourth Circuit has held that materials prepared in anticipation for litigation “by or for another party or its representative” are also protected, the emails satisfy that requirement as well.

However, for the work product privilege to apply, the subject materials “must be part of the process of seeking, developing, or conveying legal advice or strategy.” The court concluded that the emails here did not involve the workplace investigation of the claim or the development of legal strategy. Instead, the emails generally related to communications between Chase and ServiceMaster to coordinate responses to Coffey’s EEOC complaint, and, therefore, the work product doctrine did not apply to these emails.

The court also determined that Chase and ServiceMaster did not share a common interest to provide work product protection to the emails. While the Fourth Circuit has held that the joint defense privilege extends to communications between civil co–defendants, rather than just their lawyers, it has also held that “there must be an agreement or a meeting of the minds” for the common interest doctrine to apply and that mere “indicia of joint strategy as of a particular point in time are insufficient to demonstrate that a common interest agreement has been formed.” Here, the evidence produced by Chase only established employees sharing materials to respond to Plaintiff’s EEOC complaint and did not demonstrate any broader legal approach.” Since Chase wasn’t able to establish that Chase and ServiceMaster had an agreement that it had a common defense interest, the court concluded that the privilege did not apply.

What Does Coffey v. Tyler Staffing Services, Inc. Mean for Employers?

Here, the court held that the work product privilege did not apply to the relevant emails, and, thus, they were discoverable. The court’s decision was primarily based on the fact that the emails at issue did not involve the workplace investigation of the claim or the development of legal strategy. The court noted that for work product privilege to apply, the subject materials “must be part of the process of seeking, developing, or conveying legal advice or strategy.” This is an important standard to keep in mind for employers that find themselves involved in a legal matter. Employers should be knowledgeable about the types of communication that may be protected as work product and keep these standards in mind when sharing communications related to a legal matter. The major takeaway from this case is that seemingly routine emails about a matter will not constitute work product unless there is some discussion of legal advice or strategy included.  To be protected, communications should be part of a workplace investigation coordinated by legal counsel.   Additionally, this case touches on the importance of not forwarding communications to other parties. If privileged information is forwarded to an outside party, the communication’s privilege may inadvertently be waived. Some other best practices may include giving and receiving advice orally, rather than in writing, and labeling relevant emails and other documents as “attorney-client privileged” or “attorney work product.” While such labels will not guarantee that the communications will be privileged, it may help prevent materials from being forwarded to a third party and potentially waiving any privilege, as well as establish that the communications were intended to be protected.

If an EEOC Charge or other allegations have been made against your company, having legal counsel coordinate a workplace investigation is important to protect and defend the company.  

If you need more guidance or information, contact the employment law experts at General Counsel, PC today at 703-991-7973. Attorneys at General Counsel, PC are specialized in labor and employment law and have experience working with business owners across Virginia, specifically in Fairfax County, Arlington, Loudoun County, and Prince William.